United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
matter is before the Court on defendant's motion to
dismiss pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal
Rules of Civil Procedure, [DE 8]. The matter has been fully
briefed and is ripe for ruling. For the reasons discussed
below, the motion to dismiss is granted and the complaint is
February 9, 2017, plaintiff filed a complaint alleging two
retaliation claims against defendant Troy University. [DE 1].
Plaintiff brought a claim of retaliation pursuant to Section
1981 of the Civil Rights Act of 1964, 42 U.S.C. § 1981,
and a second claim of retaliation pursuant to Title IX of the
Educational Amendments of 1972, 20 U.S.C. § 1681, et
was employed by defendant Troy University as a recruiter in
its Fayetteville, North Carolina office. In his complaint,
plaintiff alleges that on May 22, 2015, he emailed Kara Hall
in Troy University's Human Resources Department and set
forth several concerns about the work environment at the
recruiting office for which he worked. [DE 1 at ¶ 8].
Plaintiff first noted his concern that the local manager and
her assistant referred to a student as a "faggott,
" which plaintiff believes is "discriminatory
against gay people." Id. at ¶ 9. Plaintiff
also told Kara Hall that the same manager and assistant
discussed "penis sizes of black and white men" with
a student, which plaintiff believes is "discriminatory
with regards (sic) to both the plaintiff and the
student." Id. at ¶ 10. Finally, plaintiff
complained that the manager told him that Troy
University's site in Fayetteville, North Carolina was a
"site of all blacks . . . referring to the racial
composition of the staff, " that "things would have
been different if [the site's staff] were a white ...,
" and that Troy University is "racist" and
"the school was even on a road named after a public
Hall acknowledged receipt of plaintiff s email on May 22,
2015 and interviewed him regarding his concerns on June 4,
2015. Id. at ¶ 13, 15. According to plaintiff,
unnamed persons then engaged in retaliation by disciplining
him with a written warning and suspending him, id.
at ¶ 16-17, and also by changing.his schedule to
"his detriment" and to be "less favorable than
other employees who had not filed discrimination
allegations." Id. at ¶ 18. Plaintiff
further alleges that on September 9, 2015, Ms. Gainey
notified him that his employment was terminated and that this
was an act of retaliation. Id. at ¶ 23.
March 31, defendant moved to dismiss plaintiffs first claim
pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(2), arguing that the Eleventh Amendment bars the claim
because defendant is a public corporation or governmental
entity of the state of Alabama. [DE 8]. Defendant also moved
to dismiss both claims pursuant to Rule 12(b)(6).
Rule of Civil Procedure 12(b)(1) authorizes dismissal of a
claim for lack of subject matter jurisdiction. When subject
matter jurisdiction is challenged, the plaintiff has the
burden of proving jurisdiction to survive the motion.
Evans v. B.F. Perkins Co., 166 F.3d 642, 647-50 (4th
Cir. 1999). "In determining whether jurisdiction exists,
the district court is to regard the pleadings'
allegations as mere evidence on the issue, and may consider
evidence outside the pleadings without converting the
proceeding to one for summary judgment." Richmond,
Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991). The movant's motion to
dismiss should be granted if the material jurisdictional
facts are not in dispute and the movant is entitled to
prevail as a matter of law. Id.
12(b)(6) motion to dismiss tests the legal sufficiency of the
complaint. Papasan v. Attain, 478 U.S. 265, 283
(1986). When acting on a motion to dismiss under Rule
12(b)(6), "the court should accept as true all
well-pleaded allegations and should view the complaint in a
light most favorable to the plaintiff." Mylan Labs.,
Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). A
complaint must allege enough facts to state a claim for
relief that is facially plausible. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Facial plausibility
means that the facts pled "allow the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged, " and mere recitals of the elements
of a cause of action supported by conclusory statements do
not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A complaint must be dismissed if the factual
allegations do not nudge the plaintiffs claims "across
the line from conceivable to plausible."
Twombly, 550 U.S. at 570. The complaint must plead
sufficient facts to allow a court, drawing on judicial
experience and common sense, to infer more than the mere
possibility of misconduct. Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir.
2009). The court need not accept the plaintiffs legal
conclusions drawn from the facts, nor need it accept as true
unwarranted inferences, unreasonable conclusions, or
arguments. Philips v. Pitt County Mem. Hosp., 572
F.3d 176, 180 (4th Cir. 2009). Although the Court must
construe the complaint of a pro se plaintiff
liberally, such a complaint must still allege "facts
sufficient to state all the elements of [her] claim" in
order to survive a motion to dismiss. Bass v. E.I. DuPont
de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003).
considering a motion to dismiss pursuant to Rule 12(b)(6),
the Court may consider documents attached to the complaint,
as well as those attached to the motion to dismiss so long as
they are integral to the complaint and authentic.
Fed.R.Civ.P. 10(c); Sec 'y of State for Defence v.
Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir.
2007); Philips v. Pitt County Mem 7 Hosp.,
572 F.3d 176, 180 (4th Cir. 2009). A court ruling on a motion
to dismiss under Rule 12(b)(6) may also properly take
judicial notice of matters of public record. Sec'y of
State for Defence, 484 F.3d at 705.
first moved pursuant to Rule 12(b)(1) to dismiss plaintiffs
claim under 42 U.S.C. § 1981, arguing that, as a state
university and an agency or instrumentality of the state of
Alabama, defendant is immune against such a claim under the
Eleventh Amendment. See Williams v. Bennett, 689
F.2d 1370 (11th Cir. 1982), cert, denied, 464 U.S.
932 (1983); Pennhurst State Sch. & Hosp. v.
Halderrnan, 465 U.S. 89, 121 (1984); Quern v.
Jordan, 440 U.S. 332, 341 (1979); Edelman v.
Jordan, 415 U.S. 651, 672 (1974); Massler v. Troy
State University, 343 So.2d 1 (Ala. 1977). Plaintiff
admits that defendant is a state entity and immune from suit.
[DE 10 at 1]. Accordingly, plaintiffs first claim under
Section 1981 is dismissed.
next moved to dismiss plaintiffs second claim pursuant to
Rule 12(b)(6), arguing that the complaint fails to state a
claim under which can be granted. Plaintiffs second cause of
action alleges retaliation in violation of Title IX of the
Education Amendments of 1972, 20 U.S.C. §1681,
etseq. ("Title IX"). Title IX provides,
with certain exceptions, that "[n]o person in the United
States shall, on the basis of sex, be excluded from
participation in, be denied benefits of, or be subjected to
discrimination under any education program or activity
receiving Federal financial assistance." 20 U.S.C.
§ 1681(a). In Preston v. Virginia ex rel. New River
Community College, the Fourth Circuit recognized a cause
of action under Title IX for retaliation against the victim
of sex-based discrimination. 31 F.3d 203 (4th Cir. 1993).
Courts have generally applied Title VII standards and burdens
to Title IX cases. Id. To establish a plausible
Title IX retaliation claim, therefore, a plaintiff must
allege sufficient facts to show: (1) engagement in a
protected activity; (2) an adverse action; and (3) a causal
connection between the protected activity and the adverse
action. See Coleman v. Md. Court of Appeals, bib
F.3dl87, 190 (4th Cir. 2010).
of hostile work environment is only actionable under Title IX
if the alleged hostility amounts to sex-based discrimination.
See Jennings v. Univ. of N. Carolina, 482 F.3d at
695; see also Oncale v. Sundowner Offshore Servs.,523 U.S. 75, 80 (1998) ("[T]he critical issue [in a
sexual harassment claim under Title VII] is whether members
of one sex are exposed to disadvantageous terms or conditions
of employment to which members of the other sex are not
exposed.")- Similarly, a claim of retaliation under
Title IX only lies where the ...